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Earlier this week, as you may know, Judge Jerry Smith of the Fifth Circuit Court of Appeals asked Attorney General Eric Holder to explain whether or not he agrees with the President that it would be “unprecedented” for the Supreme Court to strike down a law that had been duly passed by Congress. Holder has responded, with a three-page, single-spaced letter, as Smith requested. I’ve posted the full letter here. Here is Holder’s introduction.

Dear Judge Smith, Judge Garza, and Judge Southwick:

This Court’s letter of April 3, 2012 requested a response to questions raised at oral argument in this case, Physician Hospitals of America v. Sebelius, No. 11-40631. From the electronic recording of the argument, I understand the Court to have requested the views of the Department of Justice regarding judicial review of the constitutionality of Acts of Congress. The Court indicated that its inquiry was prompted by recent statements of the President.

The longstanding, historical position of the United States regarding judicial review of the constitutionality of federal legislation has not changed and was accurately stated by counsel for the government at oral argument in this case a few days ago. The Department has not in this litigation, nor in any other litigation of which I am aware, ever asked this or any other Court to reconsider or limit long-established precedent concerning judicial review of the constitutionality of federal legislation.

The government’s brief cites jurisdictional bars to the instant suit and urges that plantiffs’ constitutional claims are insubstantial. See Appellee Br. of the United States at 17-38. At no point has the government suggested that the Court would lack authority to review plaintiffs’ constitutional claims if the Court were to conclude that jurisdiction exists. The case has been fully briefed and argued, and it is ready for disposition. The question posed by the Court regarding judicial review does not concern any argument made in the government’s brief or at oral argument in this case, and this letter should not be regarded as a supplemental brief.

Holder goes on to review the relevant case law, and notes that “the Executive Branch has often urged courts to respect the legislative judgments of Congress.” Holder concludes by stating that “The President’s remarks were fully consistent with the principles described herein.”

UPDATE 1: Patrick Brennan has posted a nice summary of Holder's letter over at National Review:

First, he suggests that “the power of the courts to review the constitutionality of legislation is beyond dispute,” citing Marbury v. Madison. However, Holder notes that “the Supreme Court has further explained that this power may only be exercised in appropriate cases” and “we have argued that this Court lacks jurisdiction to hear the case.”

Secondly, Holder asserts that “in considering such challenges, Acts of Congress are ‘presumptively constitutional,’” and “and the Supreme Court has stressed that the presumption of constitutionality accorded to Acts of Congress is ‘strong.’” Therefore, he argues, “in light of the presumption of constitutionality, it falls to the party seeking to overturn a federal law to show that it is clearly unconstitutional.”

Finally, Holder suggests that, in some sense, President Obama’s remarks weren’t “unprecedented” either, because “while duly recognizing the courts’ authority to engage in judicial review, the Executive Branch has often urged courts to respect the legislative judgments of Congress” and “the Supreme Court has often acknowledged the appropriateness of reliance on the political branches’ policy choices and judgments.” Moreover, “the courts accord particular deference when evaluating the appropriateness of the means Congress has chosen to exercise its enumerated powers, including the Commerce Clause, to accomplish constitutional ends.”

Holder concludes that “the President’s remarks were fully consistent with the principles described herein,” and therefore represented no inappropriate or unorthodox view of the Court’s powers of judicial review.

UPDATE 2: Grace-Marie Turner writes that Holder "used the letter to reiterate President Obama's warning to the Supreme Court to uphold the health-care law:"

Holder acknowledged in his two-and-a-half-page letter the validity of “long-established precedent concerning judicial review of the constitutionality of federal legislation.” He said, “The power of the courts to review the constitutionality of legislation is beyond dispute.”

But then the warnings began. Holder said his letter “does not concern any argument made” in the case before the Supreme Court, yet his letter touched on the Commerce Clause, the Necessary and Proper Clause, severability, and the fundamental constitutional challenge to a major provision in the law — all key issues aired during oral arguments before the Supreme Court last week.

In his letter, Holder continued to press points that the president implied in his controversial statement on Monday.

Holder said that the Court is required to assume that any law passed by Congress is constitutional. The courts must consider that “Acts of Congress are ‘presumptively constitutional.’”

Further, “the Supreme Court has often acknowledged the appropriateness of reliance on the political branches’ policy choices and judgments,” Holder continued — i.e., Congress and the president know best.

Holder also warned against the Supreme Court’s striking down the whole law if part (e.g., the individual mandate) were declared unconstitutional. Quoting a 2006 case, Ayotte v. Planned Parenthood of Northern New England, Holder wrote: “In granting relief, the courts ‘try not to nullify more of a legislature’s work than is necessary’” because they recognize that a “‘ruling of unconstitutionality frustrates the intent of the elected representatives of the people.’”

Then the attorney general tried to help the president back out of the outrageous statements he made on Monday by focusing on a narrower issue. On Tuesday, the president told newspaper editors that what he really meant on Monday in his “unprecedented, extraordinary” comment was that the Court had a long tradition of giving Congress leeway to expand its reach through the Commerce Clause.

“The courts accord particular deference when evaluating the appropriateness of the means Congress has chosen to exercise its enumerated powers, including the Commerce Clause, to accomplish constitutional ends,” Holder wrote.

And just to get in all of the constitutional markers, Holder’s letter said: “The Supreme Court has explained: ‘This is not a mere polite gesture. It is a deference due to deliberate judgment by constitutional majorities of the two Houses of Congress that an Act is within their delegated power or is necessary and proper to execution of that power.’”

Then, a final jab: “The President’s remarks were fully consistent with the principles described herein,” Holder concluded.